DONELL JENKINS VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0498-19
DONELL JENKINS,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
Submitted January 13, 2021 – Decided April 19, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the New Jersey State Parole Board.
Richard M. Pescatore, PC, attorneys for appellant
(Richard M. Pescatore, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Suzanne Davies, Deputy Attorney
General, on the brief).
PER CURIAM
Donell Jenkins appeals the August 28, 2019 final agency decision of the
Parole Board (Board) denying parole and establishing a fifteen-month parole
eligibility term (FET). We affirm.
On October 7, 2016, Jenkins was sentenced to four years subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, having entered a guilty plea to
an amended count of second-degree robbery, N.J.S.A. 2C:15-1(a)(1). The
charge arose from Jenkins's shooting of the robbery victim.
On October 4, 2018, Jenkins was released from prison and began serving
the three-year period of NERA mandatory parole supervision. He agreed in
writing to abide by certain conditions imposed by the Board including: residing
at a place approved by his parole officer; obtaining permission prior to any
change of address; obtaining permission prior to leaving the state; enrolling in,
complying with the conditions of, and successfully completing an outpatient
drug counseling program.
Jenkins was referred to a Rescue Mission program in Trenton called
"Another Chance Housing." He never reported for his intake appointment.
Jenkins's whereabouts were unknown until his October 31, 2018 arrest in
Pennsylvania.
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At the January 24, 2019 probable cause hearing, Jenkins's parole officer
testified that he referred Jenkins to Another Chance because Jenkins had
nowhere to live after discharge. The parole officer was unaware of Jenkins's
mental health issues; Jenkins did not tell him he feared retribution by the victim.
Jenkins also testified. He said that he went to a program called "Oaks
Integrated Care[,] [asked] if particular social workers and supervisors were still
employed at the program, [but] . . . was unable to access the building to sign in
. . . ." He added that he was afraid to return to Trenton for "fear of [his] life."
(alteration in original). He considered himself "stuck between a rock and a hard
place[,]" and went on the run as a result.
Essentially, Jenkins pled guilty with an explanation to the parole violation,
relying upon his fears for his own safety, and mental health diagnoses, in
mitigation. The hearing officer concluded that the parole violations were
sustained and that, because Jenkins was a flight risk, he should "continue[] in
custody until such time as a [full] revocation hearing [could] be conducted."
On February 13, 2019, a two-member Board panel reviewed the record
and the decision. The panel concurred that Jenkins was guilty of violating
special parole conditions and that revocation was appropriate.
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At the April 2, 2019 full revocation hearing, the parole officer again
testified. This time, however, Jenkins said that even though he had told the
officer that he was fearful, the officer did not offer any assistance. Jenkins also
said he had received information that the robbery victim "was out in the
community and was shooting people."
After reviewing the evidence, the parole revocation hearing officer found
Jenkins "not amenable to supervision at this time." Additionally, in light of his
extensive criminal history, including prior parole failures, the hearing officer
concluded that the aggravating factors outweighed the mitigating, and
recommended the fifteen-month FET.
A two-member Board panel agreed with the recommendation on April 24,
2019; on August 28, 2019, the full board affirmed the prior decision. Jenkins
appeals, arguing the following:
POINT ONE
THE BOARD FAILED TO MEET THE CLEAR AND
CONVINCING [EVIDENTIARY] STANDARD, AND
AS A RESULT, THE PANEL VIOLATED BOARD
POLICY BY REVOKING [JENKINS'S] PAROLE.
POINT TWO
THE HEARING OFFICER/BOARD FAILED TO
CONSIDER AND[,] IN FACT[,] DISREGARDED
MATERIAL FACTS RELATING TO JENKINS'[S]
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DOCU[M]ENTED PHYSICAL AND MENTAL
DISABILITIES IN REVOKING JENKINS'[S]
PAROLE AND FAILED TO PROVIDE ANY
ACCOM[M]ODATION WHATSOEVER.
We consider these arguments to be so lacking in merit as to not warrant
discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief
comments.
The scope of our review is limited. In re Stallworth, 208 N.J. 182, 194
(2011). The Board is the agency responsible for determining "whether an inmate
satisfies the criteria for parole release . . . ." Acoli v. N.J. State Parole Bd., 224
N.J. 213, 222 (2016). These are highly "individualized discretionary appraisals"
and are entitled to a presumption of reasonableness. Trantino v. N.J. State
Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole
Bd., 62 N.J. 348, 359 (1973)); In re Vey, 272 N.J. Super. 199, 205 (App. Div.
1993). We only intervene in a decision denying parole or imposing an FET if
the appellant demonstrates the decision is "arbitrary, capricious, or
unreasonable" or that it could not "reasonably have been reached on the credible
evidence in the record." McGowan v. N.J. State Parole Bd., 347 N.J. Super.
544, 563 (App. Div. 2002).
In this case, the Board's decision to deny parole and impose the fifteen -
month FET was fully supported by the record. Jenkins did not and could not
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deny that he never complied with any parole condition, and was in fact located
in Pennsylvania. On that record, the Board's decisions were neither arbitrary
nor capricious, nor an abuse of discretion.
Jenkins argues that the Board failed to take into account his physical and
mental disabilities. Given that Jenkins did not mention these, or his alleged
fears of the victim when he first met with his parole officer, they do not justify
his failure to comply with any aspect of the special conditions imposed upon
him.
The Board relied on substantial credible evidence in the record, including
Jenkins's admission of facts he could not deny. Therefore, the Board did not act
arbitrarily, capriciously, or unreasonably.
Affirmed.
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